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Order Expendables

Order Expendables

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Published by TorrentFreak_

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Published by: TorrentFreak_ on Jun 10, 2011
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DOES 1- 23,322
,Defendants.Civil Action No. 11-cv-00301 (RLW)
 This Court recently held a status conference to discuss several issues that have recentlycome to light regarding this case, including the status of the expedited discovery requested byPlaintiff and Plaintiff’s basis for venue, joinder, and personal jurisdiction with respect to allputative defendants in this case.On February 17, 2011, Plaintiff sought leave of the Court to serve limited discovery priorto a Rule 26(f) conference on several non-party Internet Service Providers (ISPs) to determinethe true identities of the Doe Defendants, and requested that the Court “enter an order allowingPlaintiff to serve Rule 45 subpoenas on the ISPs immediately and that the ISPs shall comply withthe subpoenas. [DKT #5]. The Court granted Plaintiff’s motion and entered an order consistentwith Plaintiff’s request on March 17, 2011. [DKT #6].Now, over two months later, Plaintiff has informed the Court that not a single subpoenahas been served in this case. The Court finds this especially surprising given the fact that one of Plaintiff’s stated reasons for “good cause” for the expedited discovery was that the ISPs typicallyretain the information that Plaintiff seeks for only a limited period of time, and if thisinformation is erased, Plaintiff will be unable to pursue its lawsuit. [DKT #5]. Plaintiff’s delay
Case 1:11-cv-00301-RLW Document 9 Filed 06/07/11 Page 1 of 5
 2in pursuing the discovery they requested on an expedited basis is inexcusable.
 In its original and amended complaints for copyright infringement, Plaintiff alleges thatvenue is proper under 28 U.S.C. §§ 1391(b) and 1400(a). 28 U.S.C. § 1391(b) sets forth thegeneral venue requirements when jurisdiction is not based on diversity:A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in (1)a judicial district where any defendant resides, if all defendants reside in thesame State, (2) a judicial district in which a substantial part of the events oromissions giving rise to the claim occurred, or a substantial part of propertythat is the subject of the action is situated, or (3) a judicial district in whichany defendant may be found, if there is no district in which the action mayotherwise be brought.28 U.S.C. § 1391(b). The copyright venue statute, 28 U.S.C. § 1400(a), is more restrictive. Itprovides that “[c]ivil actions, suits, or proceedings arising under any Act of Congress relating tocopyrights or exclusive rights in mask works or designs may be instituted in the district in whichthe defendant or his agent resides or may be found.” 28 U.S.C. § 1400(a).However, Plaintiff cites to no authority that supports the proposition that § 1391(b), andnot § 1400(a), is the controlling venue statute in copyright cases. In fact, the weight of authoritystrongly indicates that § 1391(b) is inapplicable to this case. Indeed, the Supreme Court heldlong ago that “[t]he venue of suits for infringement of copyright is not determined by the generalprovision governing suits in the federal district courts,” but rather by the specific copyrightvenue provision passed by Congress. Lumiere v. Mae Edna Wilder, Inc., 261 U.S. 174, 176(1923) (discussing the general venue provision in Section 51 of the Judicial Code (Act March 3,
During the June 2, 2011 Status Conference, counsel for Plaintiff stated that he refrained fromserving the subpoenas on the ISPs because of potentially case-dispositive issues the Court raisedwith respect to venue, joinder, and personal jurisdiction in this case. The Court notes that it didnot raise these issues until its Minute Order entered on May 25, 2011.
Case 1:11-cv-00301-RLW Document 9 Filed 06/07/11 Page 2 of 5
 31911, c. 231, 36 Stat. 1101) and the venue provision found in the Copyright Act of 1909)
. Seealso Time, Inc. v. Manning, 366 F.2d 690, 696 (5th Cir. 1966) (noting that if the plaintiff’s causeof action was a claim under federal copyright law, “the suit may be brought only in the districtwhere the defendant ‘resides or may be found’” (quoting 28 U.S.C. § 1400(a)); Goldberg v.Cameron, 482 F.Supp.2d 1136, 1143 (N.D. Cal. 2007) (section 1400(a) governs venue forcopyright infringement suits (citing Lumiere)). Furthermore, the Supreme Court has also heldthat 28 U.S.C. § 1400(b), a related venue statute for patent infringement actions, “is the sole andexclusive provision controlling venue in patent infringement actions, and that it is not to besupplemented by the provisions of 28 U.S.C. § 1391(c).” Fourco Glass Co. v. TransmirraProducts Corp., 353 U.S. 222, 229 (1957). Accordingly, Plaintiff’s reliance on § 1391(b)appears to be unfounded and venue is this case is only proper in a district in which “thedefendant or his agent resides or may be found.”
28 U.S.C. § 1400(a).Here, Plaintiff conceded at the status conference that the vast majority of the 23,322putative defendants do not reside in the District of Columbia. Furthermore, while counsel forPlaintiff has posited theories about how some of the putative defendants residing outside of this
Section 1400(a) contains the same relevant language as the Copyright Act of 1909, whichstated: “[t]hat civil actions, suits, or proceedings arising under this Act may be instituted in thedistrict of which the defendant or his agent is an inhabitant, or in which he may be found.” Actof March 4, 1909, ch. 320, § 35, 35 Stat. 1075, 1084
It is well established that § 1400(a)’s “may be found” clause refers to a judicial district in whicha defendant is subject to personal jurisdiction. See Milwaukee Concrete Studios, Ltd. v. FjeldMfg. Co., Inc., 8 F.3d 441, 445-47 (7th Cir. 1993). This court may assert personal jurisdictionover a defendant only if the District of Columbia’s long-arm statute authorizes it and to theextent permitted by due process. The applicable long-arm statute provides that a District of Columbia court may exercise personal jurisdiction where a defendant either (1) causes tortiousinjury in the District of Columbia by an act or omission in the District of Columbia; or (2) causestortious injury in the District of Columbia by an act or omission outside the District of Columbiaif he regularly does or solicits business, engages in any other persistent course of conduct, orderives substantial revenue from goods used or consumed, or services rendered, in the District of Columbia. See D.C. Code § 13-324(a)(3)-(4).
Case 1:11-cv-00301-RLW Document 9 Filed 06/07/11 Page 3 of 5

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